Citation Nr: 1709366 Decision Date: 03/27/17 Archive Date: 04/07/17 DOCKET NO. 15-27 639 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to additional Department of Veterans Affairs (VA) educational assistance benefits beyond 48 months. REPRESENTATION Appellant represented by: Virginia Department of Veterans Services WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. L. Wallin, Counsel INTRODUCTION The Veteran served on active duty from June 2003 to November 2003 and from June 2009 to October 2010. She also had a period of Reserve service. This appeal to the Board of Veterans' Appeals (Board) originated from a March 2015 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. Jurisdiction of the claim now resides with the Roanoke, Virginia, RO. FINDINGS OF FACT 1. Prior to October 1, 2013, the Veteran used 45 months of educational assistance pursuant to the Dependent's Educational Assistance (DEA or Chapter 35); she used 3 months and one day under Montgomery GI Bill Selected Reserve (MGIB-SR or Chapter 30). 2. In January 2015, the Veteran submitted an application and made an irrevocable election to receive educational assistance under Chapter 33 (Post-9/11) in lieu of educational benefits under Chapter 30. 3. In February 2015, she received a Certificate of Eligibility and was notified that she was entitled to 36 months of full-time benefits for an approved program of education or training under the Post-9/11 GI Bill; she was notified that she had until October 14, 2025, to use her benefits under this program. 4. In March 2015, she received a letter that indicated that she did not qualify for the Post 9/11 GI Bill because she had exhausted all 48 months of her education benefits under multiple VA education programs. 5. Effective October 1, 2013, 38 U.S.C.A. § 3695 was amended to remove Chapter 35 from 38 U.S.C.A. § 3695 (a) and extend the aggregate period for which any person may receive assistance under Chapter 35 on the one hand, and any of the provisions of law referred to in 38 U.S.C.A. § 3695 (a) (Chapter 33 benefits in this case) to up to 81 months. 6. Although the Veteran used 48 months of educational assistance prior to October 1, 2013, she is not barred from reviving up to 33 months of educational assistance under Chapter 33 without regard to any Chapter 35 benefits previously used; however, any revived (and retroactive) entitlement that was previously reduced by prior utilization of Chapter 35 assistance must be offset by the 3 months and 1 day of educational assistance used under Chapter 30. CONCLUSIONS OF LAW 1. Construed liberally, in a manner most favorable to the Veteran, the amended version of 38 U.S.C.A. § 3695, effective on October 1, 2013, entitles the Veteran to a reinstatement of the 36 months of educational assistance under Chapter 33, that was reduced by reason of utilization of Chapter 35 benefits prior to October 1, 2013, to be offset by the 3 months and 1 day of educational assistance used under Chapter 30. 38 U.S.C.A. § 3695 (West 2014); Pub. L. 112-154, Title IV, § 401(a), Aug. 6, 2012, 126 Stat. 1188 (2012) (amending 38 U.S.C.A. § 3695). 2. The criteria for entitlement to educational assistance of up to 32 months and 29 days under Chapter 33 have been met. 38 U.S.C.A. §§ 3322, 3695 (West 2014); 38 C.F.R. § 21.4022 (2016); Pub. L. 112-154, Title IV, § 401(a), Aug. 6, 2012, 126 Stat. 1188 (2012) (amending 38 U.S.C.A. § 3695). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran contends that she is entitled to additional VA education benefits beyond the 48 months she has already received. Specifically, she claims that laws enacted on October 1, 2013, entitle her up a total of 81 months full time benefits. She alternatively has put forth an equity argument. She contends that she relied on VA's erroneous representation in February 2015 that she had 36 months of education benefits remaining and had she known that she was not entitled to further benefits, she would not have made such decisions as buying a house while continuing her education. She argues that she is therefore entitled to the additional VA educational benefits she needs to complete her doctoral degree in business. The Veteran's record shows she used 45 months days of entitlement under the DEA/Chapter 35 program. Her Chapter 35 benefits ended on October 11, 2008. She also used 3 months and 1 day of entitlement under the MGIB-SB/Chapter 30 as of March 18, 2009. The Veteran received an aggregate of 48 months of VA education benefits under the DEA/Chapter 35 and MGIB-SR programs prior to October 1, 2013. In January 2015, the Veteran submitted an application and made an irrevocable election to receive educational assistance under Chapter 33 (Post-9/11) in lieu of educational benefits under Chapter 30. In February 2015, she received a Certificate of Eligibility and was notified that she was entitled to benefits for an approved program of education or training under the Post-9/11 GI Bill. She was further informed that she had 36 months remaining of full-time benefits to be used by October 14, 2025, fifteen years from her last separation from active duty. She was additionally informed that she was entitled to receive 60 percent of the benefits payable under the Post-9/11 GI Bill program for training offered by an institution of higher education. The percentage was determined by her length of creditable active duty service (total of 482 days of service length). Three weeks later, in March 2015, she received an additional letter that indicated that her claim for educational benefits could not be approved. She was informed that she did not qualify for the Post 9/11 GI Bill because she had exhausted all 48 months of her education benefits under multiple VA education programs, which is the maximum amount allowed by law. Another denial letter was also sent in March 2015. Prior to October 1, 2013, the law expressly provided that the aggregate period for which any person may receive VA education benefits under two or more listed programs, including the MGIB-SR and DEA, may not exceed 48 months. 38 U.S.C.A. § 3695 (a)(4) (West 2002); 38 C.F.R. § 21.4020 (a)(4) (2012). Additionally, under 38 U.S.C.A. § 3695 (b), no person may receive assistance under Chapter 31 of Title 38 in combination with assistance under any of the provisions of law cited in subsection (a), in excess of 48 months (or the part-tine equivalent thereof) unless the Secretary determines that additional months of benefits under Chapter 31 are necessary to accomplish the purposes of a rehabilitation program in the individual case. However, effective on October 1, 2013, 38 U.S.C.A. § 3695 was amended. Chapter 35 was removed from 38 U.S.C.A. § 3695 (a)(4) and a Section (c) was added to read, "The aggregate period for which any person may receive assistance under chapter 35 of this title on the one hand, and any of the provisions of law referred to in subsection (a), on the other hand, may not exceed 81 months (or the part-time equivalent thereof)". Thus, at the time of the February 2015 Certificate of Eligibility, the RO, while correct in informing the Veteran that she was eligible for Post-9/11 GI Bill benefits based on her own service, incorrectly informed her that she was eligible for 36 months of such benefits. In actuality, she only had 32 months and 29 days remaining, which will be explained in greater detail below. In denying the claim, the RO found that the Veteran was not entitled to any additional educational assistance under Chapter 33. In so finding, the RO interpreted Section 401(b) of Public Law 112-154 to mean that if a Veteran had exhausted 48 months of Chapter 35 benefits in combination with another educational assistance program, to include Chapter 30, prior to the effective date of the amended version of 38 U.S.C.A. § 3695 , then the new law would not apply. In other words, the RO interpreted the new law to only apply to Veteran's who had not exhausted all 48 months of VA education benefits under the old law at the time of the effective date of the new law. The Board disagrees with this interpretation based on a review of the legislative history and the notes of Public Law 112-154. Section 401 (b) notes that the amendment made by subsection (a) shall take effect on October 1, 2013, and shall not operate to revive any entitlement to assistance under chapter 35 of title 38, United States Code, or the provisions of law referred to in section 3695 (a) of such title, as in effect on the day before such date, that was terminated by reason of the operation of section 3695 (a) of such title as so in effect, before such date. The RO interprets the above language to mean that the new law does not apply to anyone who already received a total of 48 months of VA education benefits before October 1, 2013. However, this interpretation is inconsistent with Section 401(c)(1) which states that subject to the cap of 81 aggregate months, in the case of an individual whose period of entitlement to assistance under a provision of law referred to in section 3695(a) of title 38, United States Code (other than chapter 35 of such title), as in effect on September 30, 2013, was reduced under such section 3695(a), as so in effect, by reason of the utilization of entitlement to assistance under chapter 35 of such title before October 1, 2013, the period of entitlement to assistance of such individual under such provision shall be determined without regard to any entitlement so utilized by the individual under chapter 35 of such title. Reading Section 401(b) and (c) together, there shall be no revival of benefits actually used prior to October 1, 2013; however, any benefits that were reduced by prior utilization of chapter 35 assistance may be revived. Thus, because the Veteran used 3 months and 1 day of Chapter 30 benefits prior to October 1, 2013, she is only entitled to a revival of 32 months and 29 days of the maximum 36 months of benefits. In this regard, the Board finds that her Chapter 33 benefits were not "terminated" prior to October 1, 2013, because her February 2015 Certificate of Eligibility indicates that she had until October 14, 2025, to use her Chapter 33 benefits. Thus, prior to the effective date of the amended statute on October 1, 2013, she had exhausted 3 months and 1 day of Chapter 30 benefits; however, she was still "entitled" to use Chapter 33 benefits until October 14, 2025. Thus, the Board finds that her Chapter 33 eligibility had not "terminated" at the point. In essence, the wording in Section 401(b) is ambiguous given the specific guidance in Section 401(c) with regard to a revival of entitlement reduced by prior utilization of chapter 35 assistance. Construed liberally, the Board finds that the Veteran has established basic entitlement to a revival of Chapter 33 benefits that were reduced by prior utilization of Chapter 35 benefits even though she was capped at 48 months prior to the effective date of the amended statute. To find otherwise would frustrate the purpose of the amendment. The legislative history notes that the House Committee that sponsored the Bill believed that such a change would allow individuals who use their survivors' or dependents' educational assistance benefits to also establish in their own right entitlement to the full range of benefits under Public Law 110-252. That is exactly the case here. The Veteran's DEA benefits were established because of her step-father's service and her dependent status at the time. The Veteran served on active duty from June 2003 to November 2003 and from June 2009 to October 2010 and established a separate entitlement to educational assistance under Chapter 33 in her own right. According to the Undersecretary of Benefits for VA, the Veteran would be entitled to a revival of any Chapter 33 benefits that were previously reduced based on utilization of Chapter 35 beginning on October 1, 2013, without regard whether the Veteran used 48 months of educational assistance prior to that date. The Board agrees. Accordingly, the Veteran is entitled to up to 81 months of educational assistance under Chapter 35 and Chapter 33. However, as noted above, the Veteran used 45 months of Chapter 35 benefits and 3 months and 1 day of Chapter 30 benefits. Thus, she is entitled to a revival of no more than 32 months and 29 days of Chapter 33 benefits under the Post-9/11 GI Bill (the revival of 33 months of unused Chapter 33 benefits that were previously reduced by utilization of Chapter 35 benefits reduced by the 3 months and 1 day of benefits used under Chapter 30 for the same purpose during the period covered by this claim). ORDER Entitlement to additional educational assistance of no more than 32 months and 29 days of Chapter 33 benefits under the Post-9/11 GI Bill is granted, subject to the law and regulations governing the payment of monetary benefits. ____________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs